Friday, August 13, 2010
Drowning Your Sorrows: Supreme Court Of Arizona Finds No Error In Expert Testimony Regarding Drowning Under Rule 704
Like Federal Rule of Evidence 704(a), Arizona Rule of Evidence 704 provides that
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
Conversely, expert opinion is objectionable when it embraces an ultimate legal conclusion, i.e., when it tells the jury how it must resolve an issue. And, because the expert's testimony in State v. Chappell, 2010 WL 3000032 (Ariz. 2010), merely embraced an ultimate issue, the Supreme Court of Arizona correctly concluded that it was not objectionable.
In Chappell, Derek Chappell was convicted of first degree murder and child abuse and sentenced to death for the murder. The conviction stemmed from the drowning death of Devon Shackelford, the two year-old son of Chappell's girlfriend.
During the aggravation phase of the trial, the jury found three aggravating circumstances: (1) a previous conviction of a serious offense (child abuse)...; (2) the murder was committed in an especially cruel manner...; and (3) Chappell was an adult and the victim was under fifteen years of age at the time of the murder....
To find this second aggravating circumstance, the jury had to find that Chappell "committed the offense in an especially heinous, cruel or depraved manner."
After he was convicted and sentenced, Chappell appealed, claiming, inter alia, that testimony by the prosecution's expert, Dr. Hu, that drowning was a "horrifying experience" and a "10" on "scale of 1 to 10” was improper expert opinion on an ultimate issue. The Supreme Court of Arizona disagreed, finding that
Arizona Rule of Evidence 704 permits expert testimony that “embraces an ultimate issue to be decided by the trier of fact,” as long as the opinion "assist[s] the trier of fact to understand the evidence or to determine a fact in issue."...However, “[w]itnesses are not permitted as experts on how juries should decide cases."...
Chappell cites two out-of-state cases in which experts explicitly opined on whether the murder had been committed in the manner of the statutory aggravator. See State v. Hamilton, 681 So.2d 1217, 1225-26 (La.1996) (expert testified murder was “heinous, atrocious or cruel”); Commonwealth v. Crawley, 526 A.2d 334, 346-47 (Pa.1987) (expert defined torture as the production of "conscious pain" and testified that the murders satisfied "the definition of the word torture"). But, here, Dr. Hu merely testified about the experience of drowning and did not opine whether Devon's murder was committed in an "especially cruel" manner.